EUROPEAN

COMMISSION

Brussels, 17.7.2019
COM(2019) 343 final

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN

PARLIAMENT, THE EUROPEAN COUNCIL, THE COUNCIL, THE EUROPEAN
ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE
REGIONS

Strengthening the rule of law within the Union

A blueprint for action

EN EN
I. INTRODUCTION

The European Union is based on a set of shared values, including fundamental rights,
democracy, and the rule of law.1 These are the bedrock of our societies and common
identity. No democracy can thrive without independent courts guaranteeing the protection of
fundamental rights and civil liberties, nor without an active civil society and free media
ensuring pluralism. The rule of law is a well-established principle, well-defined in its core
meaning. This core meaning, in spite of the different national identities and legal systems
and traditions that the Union is bound to respect, is the same in all Member States.2

Under the rule of law, all public powers always act within the constraints set out by law, in
accordance with the values of democracy and fundamental rights, and under the control of
independent and impartial courts. The rule of law has a direct impact on the life of every
citizen: it is a precondition for ensuring equal treatment before the law and the defence of
individual rights, for preventing abuse of power by public authorities and for decision-
makers to be held accountable. Respect for the rule of law is also essential for citizens to
trust public institutions. Without such trust, democratic societies cannot function. The rule of
law covers how accountably laws are set, how fairly they are applied, and how effectively
they work. As recognised by the European Court of Justice and the European Court of
Human Rights, it also covers institutional issues such as independent and impartial courts,3
and the separation of powers .4 Recent rulings of the European Court of Justice have
continued to underline that the rule of law is central to the EU legal order.5

The European project relies on permanent respect of the rule of law in all Member States. It
is a prerequisite for the effective application of EU law and for mutual trust between
Member States. It is also central to making the European Union work well as an area of
freedom, security and justice and an internal market, where laws apply effectively and
uniformly and budgets are spent in accordance with the applicable rules. Threats to the rule
of law therefore challenge the legal, political and economic basis of how the EU works. This
is why promoting and upholding the rule of law is a central imperative of the European
Commission’s work as guardian of the Treaties. Deficiencies as regards respect for the rule
of law in one Member State impact other Member States and the EU as a whole, and the
Union has a shared stake in resolving rule of law issues wherever they appear.

While, in principle, all Member States are considered to respect the rule of law at all times,
recent challenges to the rule of law in some Member States have shown that this cannot be
taken for granted. Such challenges have triggered concern about the ability of the Union to
address such situations. Many recent cases with resonance at EU level have centred on the
independence of the judicial process. Other examples have concerned weakened
constitutional courts, an increasing use of executive ordinances, or repeated attacks from one

1
Article 2 of the Treaty on European Union.
2
The rule of law is enshrined in Article 2 of the Treaty on European Union as one of the founding values
of the Union, common to the Member States.
3
Article 19 of the Treaty on European Union establishes an obligation for Member States to ensure
effective judicial protection. As set out by the Court of Justice, the very existence of effective judicial
protection ‘is of the essence of the rule of law’, Case C-72/15 Rosneft.
4
Annex to the Communication from the Commission to the European Parliament and the Council ‘A new
EU Framework to strengthen the Rule of Law’ of 11.3.2014, COM (2014) 158 final, and recent case law
of the European Court of Justice, Case C-64/16, Associação Sindical dos Juízes Portugueses v. Tribunal
de Contas; case C‑ 216/18 PPU, LM, case C-619/18, Commission v. Poland (order of 17 December
2018).
5
Judgment of 24 June 2019 in Case C-619/18 Commission v. Poland.

1
branch of the state on another. More widely, high-level corruption and abuse of office are
linked with situations where political power is seeking to override the rule of law, while
attempts to diminish pluralism and weaken essential watchdogs such as civil society and
independent media are warning signs for threats to the rule of law.6

In its Communication of 3 April 2019,7 the European Commission presented an overview of

the current toolbox to address challenges to the rule of law within the Union and opened a
debate on how to strengthen it. EU institutions and bodies, Member States, international
organisations, judicial networks, civil society and academia have taken part in this debate
and provided valuable contributions. The importance of the rule of law and the need for a
stronger EU rule of law toolbox clearly emerged from this debate. This echoes a growing
concern for rule of law issues in the EU institutions.

In Sibiu in May 2019, European leaders unanimously committed to ‘continue to protect our
way of life, democracy and the rule of law’.8 The European Council has confirmed the Sibiu
commitment in its Strategic Agenda adopted on 21 June 2019.9 This calls for rule of law
matters to have a higher priority in the European Council and the Council. Respect of the
rule of law has figured prominently in the debates in the European Parliament 2014-2019
term,10 as well as in the programmes of Council presidencies.11 It has also been an important
theme of the 2019 European elections campaign. European political parties have started to
consider whether parties which challenge the rule of law and common EU values should be
excluded from the parties.

While this debate will need to continue,12 this Communication sets out concrete actions for
the short and medium term. Some actions can be set in motion immediately. Others will
have to be developed further as a key work strand for the incoming Commission, the
European Parliament and the Council. Strengthening the rule of law in the Union is, and
must remain, a key objective for all.

II. THE RULE OF LAW: A SHARED VALUE FOR EUROPEANS

Since the April Communication, the debate on the rule of law has intensified. The
Commission has benefited from a wide variety of contributions and reflections. The
Commission received 60 written contributions13 from national, EU and international
institutional actors, as well as from civil society and academia. The Commission also

6
More generally, and in addition to political developments, technological or societal developments may
also create new challenges to the rule of law in the years to come, for example in relation to artificial
intelligence and its use in sensitive areas, such as justice systems.
7
Communication from the Commission to the European Parliament, the European Council and the Council
Further strengthening the rule of law within the Union – State of play and possible next steps
(COM(2019)163 final).
8
Ibid.
9
https://www.consilium.europa.eu/en/press/press-releases/2019/06/20/a-new-strategic-agenda-2019-2024/
10
In October 2016, the European Parliament adopted a resolution calling for a Union-wide monitoring
mechanism regarding democracy, rule of law and fundamental rights.
11
See for example the programme for the trio Council Presidency for the period 1 January 2019 - 30 June
2020: http://data.consilium.europa.eu/doc/document/ST-14518-2018-INIT/en/pdf
12
For example, the Council has planned a review of its own rule of law dialogue under the Finnish
Presidency in autumn 2019.
13
A summary of the contributions is available here: https://ec.europa.eu/info/policies/justice-and-
fundamental-rights/effective-justice/rule-law/initiative-strengthen-rule-law-eu_en#stakeholder-
contributions

2
participated in conferences and debates at European level and in the capitals. Contributions
emphasised the importance of the rule of law and the imperative of respecting it across the
EU. They also confirmed the relevance and complementarity of the three pillars of
promotion, prevention and response, set out in the April Communication. Some considered
the development of the toolbox as a priority, whilst others considered that better
enforcement of existing tools would already make a difference. A small number of
contributions questioned the EU dimension of the matter. This reflects the reality that the
significance of the rule of law in the working of the EU, to its citizens and to business,
cannot be taken for granted and should be further promoted and explained. It also underlines
the importance of showing that EU action is objective, proportionate and non-
discriminatory, and that a formal EU response should only come into play when national
checks and balances are not working.

In addition, in April 2019 the Commission undertook a Eurobarometer survey in all Member
States. The results show overwhelming support for the rule of law, with limited differences
between Member States.14 The importance of the key principles of the rule of law were
recognised by over 80% of citizens in all Member States.15 Other key conclusions were the
strong support for the importance of media and civil society in keeping those in power
accountable, with over 85% of Europeans considering important that media, journalists and
civil society can operate freely and make criticisms without risk of intimidation.

The Eurobarometer also underlined that Europeans consider it important that the rule of law
applies throughout the EU, with 89% supporting the need for the rule of law to be respected
in all other EU Member States.

Europeans also called for respect for the rule of law to be improved, with again a consistent
figure of over 80% support for some improvements in the key rule of law principles. The
need for improvement was particularly strong in terms of effective judicial protection,
legality and avoiding arbitrary decisions – as well as for media freedom and civil society.

The consultation following the April Communication also reflected the importance of the
rule of law for citizens in the willingness of many civil society organisations and academia
to engage further in the promotion and prevention of the rule of law and to act as whistle-
blowers when problems emerge. Some examples of actions which appeared particularly
interesting are the organisation of EU-wide citizen dialogues, the development of rule of law
‘literacy’ with accessible and user-friendly sources, and open platforms to share information
and alerts.

III. A SHARED RESPONSIBILITY FOR ALL MEMBER STATES AND EU

INSTITUTIONS

The responsibility to ensure the respect of the rule of law as a common value lies primarily
on each Member State. To ensure a proper functioning of their state is an internal
constitutional responsibility, but also a responsibility with regard to the Union and to other
Member States. The principle of sincere cooperation (Article 4(3) TEU) emphasises the duty

14
Special Eurobarometer 489 – rule of law:
http://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/survey/getsurveydetail/instruments/special/
surveyky/2235
15
Legality, legal certainty, equality before the law, separation of powers, prohibition of arbitrariness,
penalties for corruption, and effective judicial protection by independent courts.

3
of the Member States to facilitate the achievement of the Union’s tasks and refrain from
measures which could jeopardise the Union’s objectives. It also underlines the duty of the
Union and the Member States to assist each other, which means there is a responsibility on
all EU institutions to provide proportionate assistance to Member States in ensuring the
respect of the rule of law.

The April Communication noted that the rule of law is also one of the principles guiding the
EU’s external action and has become progressively more central to the EU accession process
and to neighbourhood policy. The European Council's Strategic Agenda confirms that
upholding the EU’s values should be at the heart of EU external relations. The Commission
is already actively supporting rule of law reforms in third countries.

Another core obligation of Member States is to guarantee to citizens the exercise of their
rights, notably through access to justice and fair trial. Article 19 TEU entrusts the
responsibility for ensuring the full application of EU law in all Member States and judicial
protection of the rights of individuals under that law to national courts and tribunals and to
the Court of Justice. Indeed, the role of national courts and tribunals in the application of EU
law is crucial as they are responsible in the first place for the application of EU Law and for
initiating the preliminary ruling procedure provided for in Article 267 TFEU, in order to
secure the consistency and uniformity in the interpretation of EU law. In this regard, and as
confirmed by the European Court of Justice’s recent case law, the guarantee for judicial
independence is a legal obligation at the core of the rule of law.

Effective judicial protection by independent courts is required by Art 19(1) TEU as a

concrete expression of the value of the rule of law. That provision lies at the heart of a
number of preliminary references from national courts and of infringement procedures
launched by the Commission before the Court. Already in 2006, the Court ruled that the
notion of ‘judicial independence’ is an autonomous concept of EU law and that this implies
that judges must be protected against any external intervention that could jeopardise their
independent judgment.16 This was followed in 2018 and 2019 by a number of important
judgements. The Court held that Member States are required by Union law to ensure that
their courts meet the requirements of effective judicial protection, a concrete expression of
the rule of law, and that the independence of national courts is essential to ensure such
judicial protection.17

In other judgements, the Court has defined in further detail the requirements of the
guarantees of independence and impartiality, noting their pivotal importance for both the
proper working of the judicial cooperation system embodied by the preliminary ruling
mechanism under Article 267 TFEU and for secondary law instruments based on the
principle of mutual trust.18 The Court also issued interim measures to suspend national
reforms that would affect judicial independence.19 More recently, the Court has established
that although the organisation of justice in the Member States falls within national
competence, Member States must comply with EU law obligations when exercising that
competence, and therefore this may be subject to review by the Court of Justice20. Other

16
Case C-506/04, Wilson.
17
Case C-64/16, Associação Sindical dos Juízes Portugueses; Case C-49/18, Escribano Vindel.
18
In terms of the composition of a judicial body and the appointment, length of service and grounds for
abstention, rejection and dismissal of its members as well as of the disciplinary regime governing judges,
Case C-216/18 PPU, LM and Case C-8/19 PPU, RH.
19
Case C-619/18 R, Commission v. Poland, order of 17 December 2018.
20
Case C-619/18, Commission v. Poland.

4
cases brought by national courts and the Commission are pending before the Court, and
could lead to further important developments in the case law.

There is also an evolving jurisprudence of the Court highlighting how systematic problems
related to the rule of law may have a specific impact in the area of Union finances.21

IV. ACTIONS TO STRENGTHEN THE RULE OF LAW

The April Communication set out the existing toolbox to encourage and enforce the rule of
law in the EU. Assessing the experience so far, the Commission identified avenues to
reinforce this toolbox resting on three pillars: promoting a rule of law culture, preventing
rule of law problems from emerging or deepening, and how best to mount an effective
common response when a significant problem has been identified.

It is important to recall here the core principles underlying EU action on the rule of law.
First, there is a legitimate interest from both the EU and other Member States in the proper
functioning of the rule of law at national level. Second, the primary responsibility to ensure
the rule of law rests with each Member State, and the first recourse should always be to
national redress mechanisms. Third, the EU’s role in this area must be objective and treat all
Member States alike, and all its institutions need to contribute in accordance with their
respective institutional role. Finally, the objective must not be to impose a sanction but to
find a solution that protects the rule of law, with cooperation and mutual support at the core
– without ruling out an effective, proportionate and dissuasive response as a last resort.

Promotion: Building knowledge and a common rule of law culture

The best guarantee for the respect of our common values is the existence of a robust political
and legal culture supporting the rule of law in every Member State. However, it cannot be
assumed that this is always the case. Political developments in several Member States have
led to cases where principles such as the separation of powers, loyal cooperation amongst
institutions, and respect for the opposition or judicial independence seem to have been
undermined – sometimes as the result of deliberate policy choices. A lack of information
and limited general public knowledge about challenges to the rule of law provide a breeding
ground for such developments. The Eurobarometer survey has revealed that over half of
Europeans do not feel sufficiently informed about the EU’s fundamental values.

These gaps need to be filled with proactive actions to promote the rule of law within the EU,
both at professional level and in the general public at large. Such actions would seek to
embed the rule of law in national and European political discourse, both through
disseminating knowledge about, EU law requirements and standards and the importance of
the rule of law for citizens and business, and by empowering stakeholders with an interest in
promoting rule of law themes. For citizens and businesses to appreciate the role and
importance of justice systems, these need to be modern and accessible. Of key importance is
also the mutual trust in each other’s judicial systems, which is a pre-condition for a truly
functioning Single Market.

21
This includes preliminary rulings on the need for effective investigation of tax fraud or fraud with Union
funds (see cases C-617/10, Åkerberg Fransson; C-105/14, Taricco; C-42/17 M.A.S.; and C-612/15
Kolev).

5
The Council’s intention to discuss its own approach on the rule of law under the Finnish
Presidency in autumn 2019 could bring useful improvements to the promotion of the rule of
law amongst Member States.22
Civil society, media, academia and Member States’ education systems can all play a part
by ensuring a place for the rule of law in public debate and educational curricula. A key
challenge in this regard is to foster a rule of law culture in the general public, as recognised
in the Council Recommendation on promoting common values. 23 The Commission has
received contributions from civil society organisations showing a willingness to deepen this
work.24 The Commission will follow up on the idea of a yearly event on rule of law for
dialogue with, and between, civil society organisations and policy-makers at EU level. The
Commission will also continue to pay a special attention to attempts to pressurise civil
society and independent media and further support their work. Under the new Multi-Annual
Financial Framework, even though these programmes are not specific to the rule of law, the
Commission has proposed a stronger, more coherent funding framework for such work
under the future Rights and Values programme25 and the Creative Europe programme.26 The
Commission calls on the European Parliament and the Council to swiftly adopt these
programmes so that they can start on time. Furthermore, EU-funded research on the rule of
law should continue to be encouraged, and the results of ongoing projects duly disseminated.
Transparency and access to information are crucial tools for civil society and media in
the national checks and balances. Laws on transparency and access to information need to be
effectively applied in all Member States and at EU level. 27 In order to make the rule of law
more visible, the Commission intends to develop a dedicated communication strategy on
rule of law, including to make related information accessible in all official languages and to
clearly explain its significance for the Union as a whole and for individual citizens and
businesses.
European networks already play an important role in promoting and exchanging ideas and
best practices.28 Within the judiciary, networks such as the European Network of the
Presidents of Supreme Courts of the EU, the Association of the Councils of State and
Supreme Administrative Jurisdictions of the EU, the European Network of Councils for the
Judiciary, and the European Training Network for Judges should be supported to further
promote the rule of law. Commission support to all these networks should prioritise projects
promoting the rule of law, with a particular focus on Member States facing rule of law
challenges.29 Further cooperation between institutions in charge of constitutional oversight
22
See introduction and next section on prevention.
23
Council Recommendation of 22 May 2018, on promoting common values, inclusive education, and the
European dimension of teaching, 2018/C 195/0, O.J. 7.6.2018.
24
See above – Section II.
25
The Commission proposed €641 million for the implementation of the Rights and Values programme for
2021-2027.
26
The Commission proposed €1.85 billion for the implementation of the Creative Europe Programme for
2021-2027, including up to €160 million for the cross sectoral strands. Its four priorities include the
promotion of activities ‘enhancing a free, diverse and pluralistic media environment, quality journalism
and media literacy’. One of the objectives is to provide stable funding to projects on media freedom and
media pluralism.
27
These include Regulation (EC) No 1049/2001 and sectoral access to information under EU law. General
national obligations also stem from the European Convention of Human Rights.
28
These also include judicial networks advisory bodies to the Council of Europe such as the Consultative
Council of European Judges (CCJE) and the Consultative Council of European Prosecutors (CCPE).
29
Under the Justice Programme, the Commission gives operating grants to certain European networks in the
justice area, which have framework partnership agreements with the Commission. Other networks receive
funding from a variety of EU programmes and projects.

6
should also be encouraged and supported, including as regards the activities of the
Conference of European Constitutional Courts. The European Network of Ombudsmen
could also further its exchange of experience and best practices in promoting good
administration and contribute to the collection and dissemination of relevant data.

More generally, national judiciaries have also an important role to play in promoting rule of
law standards. The participation of national judicial councils, judges and prosecutors in
national debates on judicial reforms is in itself an important part of national checks and
balances.

National parliaments also play a key role in ensuring the rule of law in Member States,
both as lawmakers and in holding the executive accountable. The European Parliament, the
Conference of Parliamentary Committees for Union Affairs of Parliaments of the EU and
the Conference of Speakers of the EU Parliaments could prioritise inter-parliamentary
dialogue on rule of law issues, for example through an annual event. This could also be
made a theme in national parliamentary debates on EU issues. The Commission stands ready
to contribute to stimulating such dialogue. Bilateral parliamentary exchanges and support,
for example on best practices from the angle of better regulation (such as evidence-based
law-making or the transparency of procedures) or cross-party parliamentary groups on the
rule of law, would also bring benefits.

The April Communication highlighted the contribution that could come from stepping up
cooperation with the work of the Council of Europe. The Memorandum of Understanding
between the Council of Europe and the European Union from 2007 gives the Council of
Europe a specific role as the ‘benchmark for human rights, the rule of law and democracy in
Europe’ and the EU committed to take its work into account. In full respect of the
institutional and political responsibilities of both institutions, the Commission intends to
build on this cooperation and increase EU participation in the Council of Europe bodies,
making cooperation at service level stronger and more systematic. The EU is already an
active participant in the Council of Europe at many levels, including with the Commission
as observer in the Venice Commission.30 An important additional step is for the EU to have
observer status in the Council of Europe group of states against corruption (GRECO). In
agreement with the Council, the Commission has taken the necessary steps to request
observer status,31 which was granted in July 2019.32 The EU provides significant funding for
the Council of Europe’s activities.33

The European Union’s accession to the European Convention on Human Rights34 will be a
strong political signal of the Union’s commitment to the rule of law and of its support for the
Convention and its, notably judicial, enforcement system. The Commission has stepped up
work towards restarting the accession negotiations.35

30
The European Commission for Democracy through Law, or Venice Commission, is an advisory body
under the Council of Europe composed of independent experts in the field of constitutional law.
31
Council Decision (EU) 2019/1086 of 18 June 2019, OJ L 171, 26.6.2019, p. 115–116.
32
https://www.coe.int/en/web/portal/-/eu-becomes-observer-to-anti-corruption-body-greco
33
Funding from a variety of EU programmes amounted to €27.5 million in commitments in 2018.
34
Which is provided for in Article 6(2) TEU.
35
In its Opinion A-2/13 of 18 December 2014 the Court of Justice ruled that a first draft Agreement was, on
certain points, some of which are legally and politically complex, not compatible with the Treaties. These
objections will require the Union to negotiate amendments to the draft Accession Agreement in order to
allow the Union to conclude the Agreement and accede to the European Convention on Human Rights.
After a reflection period, the Commission has consulted with the Council Working Group on possible

7
The Commission will also make cooperation with other international institutions working
on rule of law issues deeper with stronger and more systematic cooperation at service level.
This includes the Organisation for Security and Cooperation in Europe (OSCE), which
works on the rule of law as part of its work on democratisation, and the Organisation for
Economic Cooperation and Development (OECD), where cooperation could explore the
socio-economic benefits of the rule of law.

The work of the United Nations Special Rapporteur on the Independence of Judges and
Lawyers and the United Nations Office for Organised Crimes and Drugs, ensuring the
secretariat of the Convention against Corruption, as well as the World Bank, has also
contributed to the debate in the international community on the rule of law and its
implications.

International organisations such as the Organisation for Economic Cooperation and

Development are working on the issue from the angle of economic development and of the
importance of the rule of law to the overall business and investment climate. The European
Economic and Social Committee has likewise underlined the need to give more
consideration to economic aspects of the rule of law. The European Semester for economic
policy coordination has taken account of the relevance of the rule of law to the business
environment in its work to promote growth-enhancing structural reforms in areas such as
effective justice systems and the fight against corruption – a link also recognised by the
European Central Bank and European social partners, stressing the importance of the rule of
law as a guarantee for European citizens, employers and workers.

The Commission intends to build on the willingness of all these actors to engage in
promoting the rule of law. 36

The Commission will:

 Make full use of funding possibilities for civil society and academia supporting the
strengthening of a rule of law culture, in particular among the general public and follow
up on the idea of an annual rule of law event open to national stakeholders and civil
society organisations.
 Strengthen cooperation with the Council of Europe, including the Venice Commission
and GRECO, and explore further support to it in relation to EU priorities on the rule of
law.
 Reinforce cooperation with other international organisations such as the Organisation
for Security and Cooperation in Europe and the Organisation for Economic Cooperation
and Development.
 Build on the cooperation with European judicial and other networks to promote rule of
law standards, including any support that may be requested in relation to cooperation
between constitutional courts.
 Develop a dedicated public communication strategy on the rule of law, including by
upgrading the dedicated rule of law website to become a reference point for all relevant
information.
The Commission calls on:

solutions for the issues raised in the Opinion of the Court. These consultations have progressed well, and
the Commission hopes that the conditions for a resumption of the negotiations will be met soon.
36
See for example the European Social Partners' statement on the rule of law of 8 May 2019.

8
 The European Parliament and national parliaments to develop specific inter-
parliamentary cooperation on rule of law issues, to which the Commission could
contribute.
 The Council and the Member States to consider ways of promoting rule of law
standards, including in the context of ongoing or upcoming Rule of Law discussions.
 Member States to strengthen promotion of the rule of law at national, regional and local
level, including through education and civil society.
 Civil society organisations and social partners to continue their monitoring and their
contribution to the discussion on the impact and concrete consequences of rule of law
deficiencies in their respective area of responsibility.

Prevention: Cooperation and support to strengthen the rule of law at national level
The primary responsibility to ensure respect for the rule of law at national level lies with the
Member States. The national judiciary, together with other national checks and balances
such as constitutional courts and ombudspersons, are the first key lines of defence against
attacks to the rule of law from any branch of the state. Nonetheless, the EU has a legitimate
role to play in supporting national authorities and ensuring that negative developments are
addressed at an early stage. The role of the EU institutions should be to facilitate
cooperation and dialogue in order to prevent problems from reaching the point where a
formal response is required under the Rule of Law Framework, by infringement procedures
or by actions under Article 7 of the Treaty on European Union.

For the EU to play fully its role in this respect, EU institutions need to develop a stronger
awareness and understanding of developments in the individual Member States, through
dedicated monitoring, to be able to identify risks to the rule of law, develop possible
solutions, and target support early on. Such monitoring should cover rule of law-related
developments and reforms in Member States and help to control the sustainability and
irreversibility of reforms which have been adopted as a result of EU intervention, such as
infringement proceedings or the Cooperation and Verification Mechanism.

To strengthen the EU’s capacity, the Commission therefore intends to deepen its
monitoring of rule of law related developments in the Member States. In cooperation
with Member States and the other EU institutions as necessary, it will take the form of a
Rule of Law Review Cycle, which will have the following characteristics:

(i) Scope

The review cycle would cover all the different components of the rule of law, including for
example systemic problems with the process for enacting laws, lack of effective judicial
protection by independent and impartial courts, or non-respect for the separation of
powers.37 The review would also examine the capacity of Member States to fight corruption
and, where there is a connection with the application of EU law, look at issues in relation to
media pluralism and elections. There is also a link to monitoring of the effective
enforcement of EU law, notably the capacity of all actors playing a role in the enforcement
of EU law to perform their duties: courts, prosecution services, law enforcement authorities,

37
For example, actions and public statements attacking individual judges or the judiciary as a whole would
fall under this category.

9
independent authorities, public administrations with a supervisory role, ombudsmen and
human rights institutions and defenders.38

While the monitoring would cover all Member States, it would need to be more intense in
Member States where risks of regression, or particular weaknesses, have been identified.39

(ii) Sources of information

The review cycle would rely on a coherent use of existing sources of information. This
would bring an increased focus on a range of areas with relevance for the rule of law. There
is a need for all actors – institutional as well as from civil society – to share information and
have their position heard. Many sources of information exist, including the bodies of the
Council of Europe, the Organisation for Security and Cooperation in Europe and the
Organisation for Economic Cooperation and Development, as well as EU bodies such as the
Fundamental Rights Agency.40 This Agency, whose remit covers rule of law-relevant rights
such as that to effective judicial remedy, has developed the EU Fundamental Rights
Information System (EFRIS) to facilitate access to relevant existing information and reports
concerning the situation in the Member States. This variety of sources of information could
be better used, brought together and complemented more effectively than it is the case
today. The specific forms such an enhanced monitoring could take will have to be
developed, including in cooperation with national authorities and the other EU institutions,
and should involve a process of continuous information gathering and dialogue with national
authorities and stakeholders.

(iii) Involvement of Member States and stakeholders

In addition to relying on relevant sources, the Commission will invite all Member States to
engage further in a mutual exchange of information and a dialogue on rule of law
related topics such as judicial reform, the fight against corruption, and the law-making
process, or on measures supporting civil society and independent media as actors of the rule
of law. A number of these issues are already discussed as part of the European Semester,
when they are linked to key enabling factors for growth. This dialogue will be
complemented by a more targeted rule of law approach, encompassing additional rule of law
aspects. The regularity and intensity of the cooperation would have to be stepped up in
Member States where rule of law challenges are more apparent, again with the objective of
finding cooperative solutions to problems before they escalate.

On this basis, a network of national contact points in Member States should be set up for
dialogue on rule of law issues. This network would build on, and could integrate, already
existing contacts in the rule of law relevant areas such as networks of national contact points
in the justice and anti-corruption area.41 It would serve as a forum for discussion of

38
The effective enforcement capacity of Member States administrations and authorities depends on key
components, in particular: (i) enforcement and remedies powers, (ii) capacity/resource requirements, (iii)
independence requirements, where necessary, (iv) enforcement procedures and (v) cooperation amongst
authorities of different Member States.
39
The Rule of Law Checklist from the Venice Commission is particularly relevant in identifying specific
risks and weaknesses.
40
In this respect, the full legitimacy and relevance of data provided by international public law
organizations such as the Council of Europe and its bodies has been inter alia recognised by the Court of
Justice.
41
It would be for the Member States to designate the contact points, which could for example be located in
the public administration or judiciary. Similar structures already exist to support Commission gathering of

10
horizontal issues, including as appropriate on possible developments of the EU rule of law
toolbox instruments, and for sharing information and best practices. Contact persons will be
focal points for bilateral dialogue with each Member State and would help to prepare and
collect relevant information for the Rule of Law Report (see below). The network of
national contact points could constitute a forum for early warning on rule of law related-
reforms and for discussion amongst Member States.

Relevant bodies of the Council of Europe, as well as the OSCE and the OECD, and judicial
networks could also be invited to share their expertise and present their views, including the
European networks of the Presidents of Supreme Courts of the EU, the Association of the
Councils of State and Supreme Administrative Jurisdictions of the EU and the European
Network of Councils for the Judiciary.

This process of dialogue is particularly relevant for detecting potential rule of law issues
early, as an established and regular setting helps to improve understanding and minimise the
risk of confrontation. The dialogue can also provide an opportunity for Member States to
discuss rule of law-sensitive reforms in the preparation phase, including in light of the case
law of the European Court of Justice. The standards developed by the Court can serve as a
compass to flag where reforms would have to be addressed with caution (for example
reforms that can have a negative – and maybe unintended – effect on the independence of
magistrates or regulatory authorities). The dialogue will help to identify the possible need
for requesting external support or expertise concerning specific national developments.

(iv) Annual Rule of Law Report

In order to ensure the necessary transparency and awareness, and to keep the rule of law on
the political agenda of the EU, the Commission intends to publish an annual Rule of Law
Report summarising the situation in the Member States. Based on the variety of the sources
described above, it would provide a synthesis of significant developments in the Member
States and at EU level, including the case law of the European Court of Justice, and other
relevant information, such as relevant parts of the EU Justice Scoreboard and of the
European Semester country reports. It would be an opportunity to report on the state of play
in formal rule of law processes, as well as on the work of the EU institutions in the
promotion of rule of law standards and the development of a rule of law culture. It could
highlight best practices and identify recurrent problems. The review would be ring-fenced to
matters of direct relevance to the rule of law in the EU.

The EU Justice Scoreboard, which provides comparative data on independence, quality

and efficiency of national justice systems could itself be further developed and improved,
including to better cover relevant rule of law related areas, such as in criminal and
administrative justice.

The Rule of Law Report could furthermore serve to inform the dialogue with – and within –
the European Parliament and the Council.

(v) Inter-institutional dialogues on the rule of law

The review cycle could help to maintain a dynamic debate and to continue improving the
tools to strengthen the rule of law. It could constitute an important contribution to the work

information for the EU justice scoreboard and for dialogue with Member States on anti-corruption
policies.

11
of the European Parliament and the Council, ideally in the context of a regular and
coherent calendar of inter-institutional cooperation.

The European Parliament and the Council could draw on the Commission’s Annual Rule of
Law Report in their own discussions and debates. As regards the Council, the review could
for example inform Council discussions dedicated to the rule of law or be followed up in
Council conclusions. In this context, the Commission welcomes the upcoming discussions
on the Council’s approach to rule of law expected to take place under the Finnish Presidency
in the second half of 2019 which, together with the ongoing discussions on a peer review
mechanism, could work on relevant synergies. The Annual Rule of Law Report could also
form the basis of debates in the European Parliament and in Council. The work of the
institutions will be most effective if it is a joined-up process, which could also be followed
up with different work by the different institutions. Other EU institutions, such as the
Economic and Social Committee and the Committee of the Regions, could also contribute.

The Commission looks forward to deepening work with the European Parliament, the
Council and the Member States in the coming months and does not exclude any possibility
provided in by the Treaties to increase the mutual knowledge of national systems. However,
the Commission, as guardian of the Treaties, also needs to maintain its autonomy in terms of
both the content and timing of its own assessments. A recurring idea that came in the context
of the rule of law debate has been to have a panel of independent experts set up outside the
Commission or EU institutions, with the goal of providing expert and objective assessments
on rule of law challenges, while other proposals relate to the creation of a dedicated new
agency. However, such approaches raise a number of problems in terms of legitimacy, the
balance of inputs and the accountability for the results. Whilst the Commission already
draws on all legitimate sources of information and expertise and cross-checks the different
sources of information – and will continue to do so –, external expertise cannot take the
place of an assessment made by the Commission itself, particularly when the Commission’s
conclusions could be the basis for acts that come with legal and financial consequences and
which could be challenged at the Court of Justice. Nor can the European Parliament or the
Council delegate decision-making to outside bodies. The authority and accountability of the
institutions, as set in the institutional balance established by the Treaties, need to be
maintained.

Finally, the Commission also calls on the European political parties to ensure that their
national members pay due regard to the respect of the rule of law and follow up on the
emphasis on the rule of law in their pan-European programmes. Regulation No 1141/2014
on the statute and funding of European political parties and European political foundations 42
requires that they observe, in particular in their programme and in their activities, the values
on which the Union is founded, as expressed in Article 2 TEU. 43 In cases where the
Commission has reasons to believe that respect for these values might be in doubt, it could
ask the Authority for European political parties and European political foundations to verify
compliance with the conditions set out in the Regulation.44 A decision to de-register a
political party or foundation could be taken, if the Authority determines that there has been a
manifest and serious breach of those conditions.
42
Regulation No 2019/493 of the European Parliament and of the Council of 25 March 2019 amending
Regulation No 1141/2014 as regards a verification procedure related to infringements of rules on the
protection of personal data in the context of elections to the European Parliament.
43
Article 3(c) establishing the conditions for registration of political parties.
44
See Article 10(3) establishing the mechanism for verification of compliance with registration conditions
and requirements.

12
 The Commission will:
 Establish a Rule of Law Review Cycle to monitor the situation of the rule of law in the
Member States. To support this process, the Commission will prepare an annual Rule
of Law Report, further develop the EU Justice Scoreboard, and strengthen the
dialogue with other EU institutions, Member States and stakeholders.
 Set up a dedicated dialogue with all Member States on rule of law relevant topics
including through a network of contact persons.

The Commission calls on:

 Member States to designate their national contact points for the dialogue and exchange
of information on rule of law related issues.
 The European Parliament and the Council to organise a dedicated follow-up on the
Commission’s Annual Rule of Law Report and work together with the Commission on
an integrated approach to bring together in a coherent manner the work of the
institutions on early detection and tackling of rule of law issues.
 European political parties to ensure that their national members effectively respect the
rule of law.

Response: Enforcement at EU level when national mechanisms falter

The development of the promotion and the prevention approach should make the EU much
more robust and help guard against serious and persistent challenges to the rule of law in the
future. The aim is that the need for response at EU level would be significantly reduced.
Nevertheless, when national rule of law safeguards do not seem capable of addressing
threats to the rule of law in a Member State, it is a common responsibility of the EU
institutions and the Member States to take action to remedy the situation. This has been
confirmed by the European Court of Justice.
In recent judgments in the context of infringement proceedings and preliminary rulings, the
Court of Justice has further clarified the requirements stemming from EU law regarding the
rule of law and, in particular, judicial independence.45 The Court has re-affirmed the
importance of the independence of the judiciary and the respect of the rule of law for the
effective functioning of the EU: it ordered the suspension of national laws which, according
to the Commission’s assessment, affect the independence of the judiciary and established
that the organisation of justice by Member States is subject to compliance with EU law
obligations. These decisions have added an important dimension to the rule of law processes
under way at EU level, and play an important part in resolving these issues. There is also an
evolving jurisprudence of the Court highlighting how systematic problems related to the rule
of law may have a specific impact in the area of Union finances.46

The Commission will further build on this case law: it is determined to bring to the Court of
Justice rule of law problems affecting the application of EU law, when these problems could
not be solved through the national checks and balances. Building on its existing approach to

45
See section III above. To be noted that, in its opinion in Case C-619/18 Commission v. Poland, the
Advocate General stated that judicial proceedings can run in parallel with the 2014 Rule of Law
Framework or Article 7 TEU proceedings even if addressing the same matters.
46
This includes preliminary rulings, including regarding article 325 TFEU, on the need for effective
investigation of tax fraud or fraud with Union funds (see e.g. cases C-617/10, Åkerberg Fransson; C-
105/14, Taricco; C-42/17 M.A.S.; and C-612/15 Kolev).

13
enforcement47 and on the developing case law of the European Court of Justice, the
Commission will pursue a strategic approach to infringement proceedings related to the rule
of law, requesting expedited proceedings and interim measures whenever necessary. The
Commission will also actively promote the standards developed in the Court of Justice case
law, including by compiling the relevant findings of the Court.

As highlighted in the April Communication and in the contributions that followed, time is of
the essence when addressing a potential rule of law crisis. Many rule of law challenges are
time-sensitive and the longer they take to resolve, the greater risk of entrenchment and the
more difficult for both the Member State and the EU to reverse the negative impact. It is
thus important that the EU institutions act swiftly and have a more coherent and concerted
approach and that, in particular, the formal processes of the Rule of Law Framework 48 and
under Article 7 TEU come with clearer procedures and timelines.
On Article 7 TEU, the institutions should work together to intensify the collective nature of
decision-making between them. The Commission welcomes the intention of the Council to
agree on new procedures in respect of Article 7 hearings. This is an important step in the
direction of more efficient proceedings. It would be particularly beneficial for the Council to
reflect on whether the discussions in the General Affairs Council could be improved through
their preparation at technical level in a Council working group. It could also be helpful to
improve the decision-making process in terms of the institutional steps, with clear
procedural rules. To ensure the institutional balance, the European Parliament should be
given the possibility to present its case in procedures it has initiated. External ad-hoc
participation of Council of Europe bodies or other external expertise could also be looked at.
The Commission will also reflect on how to further involve other institutions at an early
stage of the process on the 2014 Rule of Law Framework, whilst respecting the need for
confidential dialogue with the Member State concerned at the start of the procedure. 49 The
main objective should always be to find solutions as early as possible. However, when this
does not succeed, ensuring that the European Parliament and the Council are fully updated
and can express informed views before a critical stage is reached can help find a settlement.
This will be coherent with a more collective approach to the rule of law among the
institutions.
A critical issue is the continued objective assessment of the situation, based on solid
expertise and relevant information. The process must continue to be based on public and
recognised rule of law standards. The assessment and dialogue should draw on all available
sources of relevant expertise, with the Commission retaining its autonomy and
independence of assessment, in line with its role as guardian of the Treaties.50 The expertise
of Council of Europe bodies or other independent bodies may be called upon by a Member
State facing a rule of law procedure, not only as a means of resolving the issue, but also to

47
This is in line with the more strategic approach to the Commission's enforcement actions set out in the
Communication from the Commission of 2016 ‘EU law: Better results through better application’, OJ C
18, 19.1.2017, p. 10–20.
48
Which has been recently acknowledged by the Court of Justice in its case-law as an instrument forming
full part of the EU’s legal order and producing legal effects Order of the Court of 17 December 2018 in
Case C-619/18 R.
49
The first stages of the dialogue under the rule of law framework are not public.
50
Notably the Council of Europe bodies issue a range of technical evaluations based on the case law of the
European Court of Human Rights and the standards it has developed. However, there is no limitation on
the expertise the Commission may draw on in its assessment.

14
demonstrate good faith and facilitate constructive dialogue.51 The opinion of such bodies
may also be requested in the absence of clearly defined parameters on a specific question.
Central to an effective EU approach on the rule of law and to the spirit of sincere
cooperation is to ensure a swift de-escalation or exit perspective from the formal rule of
law process, as soon as the Member State concerned has taken the steps required to restore
respect for the rule of law. The EU and the other Member States need to have sufficient
reassurances that the rule of law has been restored in a sustainable way. To this end, the
announcement of the intention to close a procedure could be linked with support from the
Commission to the Member State concerned, to ensure that commitments are effectively
implemented and sustained, including through a specific follow-up monitoring. The same
follow-up monitoring could also be used after the end of specific processes such as the
Cooperation and Verification Mechanism.52
Alongside the formal rule of law related procedures, there may also be a need for action in
specific areas of EU activity potentially affected by rule of law deficiencies in the Member
States. Recent judgements of the Court of Justice have for example highlighted the impact of
generalised deficiencies relating to judicial independence on the mutual trust on which
instruments in the area of freedom, security and justice are based.53

This protective approach for the functioning of the EU is also the basis of the Regulation
proposed by the Commission in 2018 to ensure the protection of the EU budget in case of
generalised deficiencies as regards the rule of law in Member States. 54 Such an approach
could be needed in EU policies other than the protection of EU financial interests in order to
avoid or remedy specific risks to the implementation of EU law or policies. The
Commission will explore the need for further measures to address the possible impact of
persistent rule of law problems on other EU policies.

The protection of EU financial interests could already benefit from operational

improvements. Building on actions planned in the new Commission Anti-Fraud Strategy
(CAFS),55 the Commission will consider options to establish a data analysis function that
pools data from different sources concerning the systems in place in the Member States for
the protection of the EU financial interests. This could allow for the identification of
problems in managing risks related to the EU financial interests and potentially be used to
issue warnings when problematic patterns start to emerge, such as slow and limited follow-
up to European Anti-Fraud Office (OLAF) reports and, in the future, cooperation with the
European Public Prosecutor’s Office (EPPO), or insufficient control structures at the
national level. The idea would be to intervene at a very early stage and establish whether the
problem is limited or reflects a pattern. This system could support the mechanism of the
Commission proposal concerning general deficiencies of the rule of law system, or other
procedures linked to the protection of the EU financial interests.

51
The question of whether the Commission should also directly call on the Council of Europe and its bodies
to assess specific issues in Member States could also need further reflection.
52
The Cooperation and Verification Mechanism was set up as a transitional measure for the monitoring of
judicial reform and the fight against corruption in Bulgaria and Romania at the time of their accession to
the Union in 2007. Once this special mechanism ends, monitoring should continue under horizontal
instruments.
53
Case C-216/18 PPU LM.
54
Proposal for a Regulation of the European Parliament and of the Council on the protection of the Union's
budget in case of generalised deficiencies as regards the rule of law in the Member States;
COM/2018/324 final.
55
COM (2019) 196 final.

15
The Commission will:
 Make full use of its powers as guardian of the Treaties to ensure the respect of EU law
requirements relating to the rule of law.
 Pursue a strategic approach to infringement proceedings, building on the developing
case law of the European Court of Justice and promote the standards developed in the
Court of Justice case law, including by compiling the relevant findings of the Court.
 Consider how to involve other EU institutions more regularly when implementing the
2014 Rule of Law Framework.
 Support Member States in de-escalation or exit perspective from the formal rule of law
process, including with a follow-up monitoring.
 Explore by the end of 2020 whether the impact of persistent rule of law problems on the
implementation of EU policies requires new mechanisms in addition to the proposed
Regulation on the protection of the Union’s budget.
 Explore the possibility, building on the Commission Anti-Fraud Strategy, of a data
analysis function to help identify problems in managing risks related to the protection of
EU's financial interests. The possibility to issue warnings if necessary, when
problematic patterns start to emerge, will also be explored.

The Commission calls on:

 The European Parliament and the Council to reflect on intensifying a collective
approach between the institutions on Article 7 TEU procedures.
 The Council to take forward its welcomed intention to provide the Article 7 process
with clearer and more stable procedural rules.
 The European Parliament and the Council to adopt rapidly the Regulation on the
protection of the Union’s budget in case of generalised deficiencies as regards the rule
of law in the Member States.

V. CONCLUSION AND NEXT STEPS

Upholding the rule of law is a shared responsibility of all EU institutions as well as of all
Member States. All parties must assume that responsibility and play their part. In addition to
the actions to be taken under this Communication, the Commission is committed to
continuing the debate and taking additional action as appropriate within its own remit. The
common objective must be to develop a coordinated and coherent strategic approach for the
Union involving all relevant actors. Key elements of such a strategic approach include the
promotion of a shared rule of law culture across the EU, an effective capacity to address
problems early on through preventive measures, and a commitment for effective joint action
wherever needed to contain problems when preventive measures fall short.

This Communication sets out a number of commitments and paths for reflection as part of
the Commission’s proposed blueprint for action. There will be a need for a continued
follow-up in cooperation with the other EU institutions, Member States and stakeholders
over the coming months. The debate has revealed a wide range of positive ideas that deserve
further assessment and which feed into concrete steps in the future, in addition to those
taken under this Communication. The Commission invites all stakeholders to join this
debate and looks forward to the dialogue with the newly elected Parliament and with the
Council on a coordinated approach.

16
In the meantime, the Commission will continue to play its full part as guardian of the
Treaties, taking appropriate and proportionate measures to uphold EU law, and will invest in
strengthening the capacity of the EU in this regard. The result should be to strengthen the
rule of law in the EU and to fully reflect the crucial importance of the rule of law for all EU
citizens and for the EU as a whole.

17